JACKSON, Miss. (April 30, 2017) – Instead of passing comprehensive asset forfeiture reform that would have also closed a loophole allowing police to circumvent more stringent state laws by passing cases to the feds, Mississippi took a very small step forward and enacted a modest measure increasing asset forfeiture transparency.

The Mississippi legislature passed, and Gov. Phil Bryant signed, House Bill 812 (HB812). The new law requires police to submit specific information relating to every asset forfeiture case, including a description of the property and its value, and copies of any petition that contest the forfeiture. It does not require police to account for their spending of asset forfeiture proceeds. The Institute of Justice described this as a major weakness in the reporting scheme.

“Mississippi’s failure to account for spending from forfeiture funds is particularly troubling,” said Jennifer McDonald, an IJ research analyst. “With forfeiture, law enforcement agencies can keep some or all of the proceeds from the property they take. This enables them to generate and spend funds outside the normal appropriations process, which undermines the legislature’s power of the purse. At a bare minimum, agencies should have to publicly report how they spend forfeiture proceeds.”

The law also streamlines the forfeiture process by requiring agencies to obtain a seizure warrant within 72 hours of taking property and to request prosecution of the forfeiture within 30 days of seizure.

While HB812 takes a small step forward, that proponents of asset forfeiture reform can built on, the Republican dominated Senate failed to pass more substantial reform legislation.

Sen. Chris McDaniel (R-Ellisville) sponsored Senate Bill 2498 (SB2498). 16. The legislation would have reformed Mississippi law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture. Under current law, It would have also direct asset forfeiture proceeds to the state general fund. Currently, Mississippi law enforcement agencies can keep up to 80 percent of forfeiture proceeds.

SB2498 would have also closed a loophole that allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government under its Equitable Sharing forfeiture program. The legislation would have specifically prohibit this practice in most cases.

The inclusion of provisions barring state and local law enforcement agencies from passing off cases to the feds is particularly important. In several states with strict asset forfeiture laws, prosecutors have done just that. By placing the case under federal jurisdiction, law enforcement can bypass the need for a conviction under state law and collect up to 80 percent of the proceeds from forfeited assets via the federal Equitable Sharing Program.

For example, California previously had some of the strongest state-level restrictions on civil asset forfeiture in the country, but law enforcement would often bypass the state restrictions by partnering with a federal asset forfeiture program known as “equitable sharing.” Under these arrangements, state officials would simply hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law banned or limited the practice. According to a report by the Institute for Justice, Policing for Profit, California ranked dead last of all states in the country between 2000 and 2013 as the worst offender. During the 2016 legislative session, the state closed the loophole.

As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

THE NEXT MOVE

While the passage of HB812 doesn’t offer the kind of asset forfeiture reform hoped for, it does provide a foundation for activists to build on. The transparency requirement will make it easier to show the public the extent of asset forfeiture in Mississippi and to build grassroots support for reform. Activist should seize the momentum created by the new transparency law and push for more robust legislation next session – including closing the federal loophole.